Translation:Shulchan Aruch/Choshen Mishpat/216

Paragraph 1- If one sells a garden to another, he must write for the buyer, “you shall acquire the palm trees, the dates and the branches.” Although the buyer would acquire these even if the seller did not specify, it is an enhancement of the document.

Paragraph 2- Similarly, if one sells real property to another, he must write for the buyer, “I did not exclude anything from this sale” in order to prevent any litigation or claims.

Paragraph 3- If one sells a field to another that has palm trees, and the seller said, “except for such and such palm tree” and that tree is a very good tree, the seller would retain just that tree and the buyer would receive the rest. If the tree he excluded is bad, the buyer would not acquire any trees. There are those who say the buyer would only not acquire those trees that are better than the excluded tree. He would, however, acquire those trees that are inferior to the excluded tree and even those of the same caliber. Any tree that holds a kav of fruits is considered a good tree. There are those who say that this all applies only for the type of tree excluded. The buyer would acquire any other type of tree, however.

Paragraph 4- If one sold a field to another and said “except for the trees” and there are only palm trees, he will have excluded the palm trees. If there are only grapes, he will have excluded the grapes. The same applies to other trees. If there were grapes and palm trees, he will only have excluded the grapes. Similarly, if there were palm trees and other trees, he will have excluded the other trees. If there were trees and grapes, he will have excluded the trees and sold the grapes. The reason for this is that a seller sells generously. If the seller said, “except for this carob,” the buyer would not acquire any carobs. The reason the seller specified this carob was to retain a path for himself. If he excludes palm trees, he would only exclude palm trees that are high enough that one would climb the tree with a rope. Any other palm tree would belong to the buyer. If they are all low, however, he will have excluded them all. If he excluded other trees, he would only exclude those are not bent by the yoke. Any tree that is bent by the yoke would belong to the buyer and is considered part of the field. If they were all thin enough to be bent by the yoke, however, all of them would be excluded.

Paragraph 5- If one tells another that he is selling him real property and palm trees, even if the seller did not have palm trees, if the seller wants to purchase two palm trees for the buyer, the transaction would take effect and the buyer cannot say I only want real property with palm trees. If he said he is selling real property with palm trees and the property had two palm trees, the buyer would acquire. If the property did not have two palm trees, it is a sale in error and the buyer can retract. If the seller says he is selling real property of palm trees, the buyer would not have rights to palm trees because that language just means real property that is fit for palm trees. If there were palm trees on the property, however, he would acquire it regardless of what language was used. There are those who say that if the seller said he is selling real property and palm trees, even if there were palm trees in the field, the seller must give him two palm trees in another location if he has them. If he does not have them, he would not have to acquire them. The buyer would acquire the real property, however, because there are two distinct sales; the real property and the palm trees.

Paragraph 6- If one sells three trees within a field, the buyer would obtain the appropriate amount of real property for them, even if they were three small plantings or three tree branches. There are those who say that if they were thin enough that a yoke would bend them, he would not acquire the real property between them. Even if the trees were to dry up or be cut down, the buyer would still receive the appropriate real property and cannot plant in their place, and he would acquire all the trees between them. How much is the appropriate amount of real property? Underneath the tree, between the trees and past the trees the amount for one plucking figs to pass by with his basket. In this area of the individual plucking with his basket, neither party can plant without the other’s consent. The buyer can, however, plant in the property between the trees. If the seller retained the real property between them for himself, the buyer would still acquire the actual area of the trees and can plant trees if the original trees dried up.

Paragraph 7- When is this true? Where the three trees were standing like the legs of a stone, which is two opposite each other and the third between them and distanced from them. The trees must be between four and 16 amos from each other. Where do we measure from? From the wide root of the tree. If the trees were not positioned in this manner, they were closer than four amos or farther than 16 amos apart, the buyer bought them one after the other, two were sold inside the seller’s field and the third was sold on the border, two were sold inside the seller’s field and one in another’s or a pit, water channel or public domain separated the trees, however, the buyer would not receive any property. Thus, the buyer would not acquire the trees between them and if the tree were to dry up or be cut down, he would have no further rights on the field, so long as its shoots do not replenish. If the tree’s shoots replenish, however, it is not considered a new tree and it is an outgrowth of the shoot and would belong to the owner of the tree.

Paragraph 8- If one purchased three trees and obtained the rights to the land and a branch grew and came out, he must cut it so that it does not take away from the field-owner’s path. If the seller says the branch grew and the buyer says it did not, the buyer has the burden of proof. Any twig or top of the tree that comes out belongs to the tree-owner because he owns the ground, even if they are from the root.

Paragraph 9- If one purchases two trees in another’s field, he would not have any rights to the ground. Thus, if the tree dried up or was cut down, he would have nothing. He would, however still have the area of the individual plucking with his basket, and certainly the area underneath the tree, to be able to gather his fruits. The seller would not be able to plant there. The buyer would also have the right to a path to be able to collect the fruits from the tree he purchased. If the two trees grew twigs or tree-tops, the seller may cut them down because they may begin to sprout in the earth and the buyer will tell the seller he purchased three trees from him and has the right to his land. If the branches were spread out, however, he would not be able to cut them, even if they spread far.

Paragraph 10- Any wood that is cut by the owner of the two trees that comes from the trunk, which is the part that is visible by the sun, belongs to the owner of the trees. Anything that comes from the roots, which is the part that is not visible by the sun, belongs to the owner of the field. In the case of a palm tree, the owner of the palm tree would not receive any wood because it has no trunk.

Paragraph 11- If one sells real property, and excludes trees, he would retain half of the entire land because had he not excluded the land, the buyer would be able to demand he uproot his trees. There are those who say he would only keep the land needed for the trees.

Paragraph 12- Similarly, if the seller only retained two trees, he would receive the land needed for them because had he not retained the land the buyer would be able to demand he uproot his trees.

Paragraph 13- If one sold the property to one buyer and the trees to another, and each one took possession of the trees and property, respectively, the party that took possession of the trees would acquire the trees with half the property, and the party that took possession of the property would only acquire half the property. There are those who disagree and hold the owner of the trees would have no rights to the property, except that if the trees dried up he could plant others in their place.

Paragraph 14- If one purchases olives from another in order to cut them, he must leave two shoots from the tree closest to the ground and then cut. If he purchased uncut sycamore, he would go up three tefachim and then cut. If he purchased trimmed sycamore, he would leave two tefachim. For other trees, he would leave one tefach and cut. In the case of grapes, he would cut from the knot and above. In the case of palm trees and cedar, he can dig down and uproot because their trunks do not replenish.